Sentencia Constitucional Plurinacional 0206/2014
Constitutional challenge to several of the articles and provisions of the Bolivian Criminal Code for alleged gender discrimination against women in several of the articles.
Patricia Mansilla Martínez, a member of Bolivian Parliament, filed an abstract action of unconstitutionality against articles 56, 58, 245, 250, 254, 258, 263, 264, 265, 266, 269, 315, and 327 of the Criminal Code for discrimination against women. The Court did not consider the constitutionality of articles 254, 315 or 317, as they are no longer in force.
The petitioner challenged several articles for establishing different standards for the treatment of prisoners based on gender. Article 56 establishes that imprisoned women may not be employed outside of prisons. (The restriction is not applicable to men.) Article 58 establishes that women (but not men) may be placed under house arrest when their sentence is less than six months.
Other challenged articles discriminate based on the marital status of the perpetrator or the victim, or establish attenuating circumstances based on discriminatory and outdated notions of women's honor or sexual propriety. Article 245 provides that protecting the honor of one's wife, mother, daughter, or sister is an attenuating circumstance in falsifying birth records. Article 250 establishes that it is a crime for a man to abandon a woman who is not his wife upon impregnating her, but does not make it a crime when that woman is his wife. Article 258 criminalizes women who kill their children during birth or within three days of birth "to hide their weakness or dishonor."
The rest of the challenged articles criminalize different aspects of performing or obtaining abortions. Article 263 categorically criminalizes performing abortions as well as obtaining them. Article 264 states that it is a crime to perform and abortion if the woman suffers harm or death as a result. Article 265 lessens the sentence for abortions performed to "save the honor of the woman." Article 266 provides that terminating a pregnancy that was the result of a rape or abduction not followed by marriage, statutory rape, or incest is exempt from the blanket criminalization, provided that the woman has initiated criminal proceedings and a court grants authorization for the abortion. It also establishes that abortions to protect the life and health of the woman are not a crime, provided that there is no other means to protect her health and judicial authorization has been granted. Article 269 criminalizes those who "habitually" perform abortions.
The Court ruled partially in favor of the petitioner. It found several of the challenged articles unconstitutional, upheld others conditionally, and found others constitutional. The Court found article 56 and 245 unconstitutional for discriminating against women and perpetuating outdated gender stereotypes. The Court also struck the phrase "to hide her weakness or dishonor" from article 258, and removed the distinction between married and unmarried women in article 250.
With respect to the criminalization of abortion, the Court found that unrestricted abortion in all stages of pregnancy would not be constitutional. It declared the general ban on abortion constitutional, but conditioned several of the other relevant articles. Thus, the Court declared unconstitutional the requirement that a woman report a rape to the police in order to obtain an abortion in the case of rape or incest (article 266). Similarly, it declared unconstitutional the requirement to obtain judicial authorization for an abortion in the case of rape, incest, or to protect the life and health of the woman (article 266). The Court also specified that the criminalization of those who "habitually" perform abortion does not apply to those who perform abortions that fall within the exceptions outlined in article 266.
The decision has just been published, therefore it is yet to be seen whether state agents will comply with the decision, in particular the aspects that loosen restrictions on performing or obtaining abortions in the case of rape, incest, or threat to the life and health of the mother.
The case is important for the advancement of women's reproductive rights in Bolivia. In spite of the limited nature of the Court's ruling, the decision should make it easier for women to obtain an abortion in cases of rape, incest, or threat to their lives or health. Ruling that women need not obtain judicial authorization in such cases removes a substantial procedural barrier. Additionally, the Court's decision to lift the requirement that women report that they have been raped in order to obtain an abortion is also an important step forward in ensuring that that women have access to abortion in such cases by removing procedural barriers. The decision will also allow doctors to perform legal abortions without fear of criminal prosecution. In its ruling, the Court ordered Bolivia to develop a policy regarding sexual education, which may also have positive impacts on women's reproductive rights. Finally, the Court did not eliminate the possibility of further decriminalization of abortion.